AB895: Bill Text

5. The investigation of the abuse or neglect report has not been completed, in which case the agency may only disclose that the report is under investigation.

6. Disclosure of the information would reveal the identity of the child who is the subject of the report, the child's siblings, the child's parent, guardian or legal custodian or any other person residing in the same dwelling as the child, and information that would reveal the identity of those persons has not previously been disclosed to the public.

7. Disclosure of the information would reveal the identity of the person who reported the suspected abuse or neglect or any other person who provides information relating to the suspected abuse or neglect of the child.

The information from an agency's records that may be disclosed in the case of a child fatality or near fatality is as follows:

1. A description of any investigation made by the agency in response to the report of suspected abuse or neglect, a statement of the determination of the agency as to whether abuse or neglect occurred and the basis for that determination, a statement of whether any services were offered or provided to the child, the child's family or the person suspected of the abuse or neglect and a statement of whether any other action was taken by the agency to protect the child or any other child residing in the child's dwelling.

2. Whether any previous report of suspected or threatened abuse or neglect of the child has been made to the agency and the date of that report, a statement of the determination of the agency as to whether abuse or neglect occurred and the basis for that determination, a statement of whether any services were offered or provided to the child, the child's family or the person suspected of the abuse or neglect and a statement of whether any other action was taken by the agency to protect the child or any other child residing in the child's dwelling.

3. Whether the child or the child's family has received any child welfare services prior to the report of the suspected abuse or neglect that caused the child fatality or near fatality or prior to any previous report of suspected or threatened abuse or neglect.

Citizen review panel access to child abuse and neglect reports and records

Finally, the bill conforms state law to CAPTA by permitting a citizen review panel established or designated by DHFS or a county department to have access to otherwise confidential child abuse and neglect reports and records.

Jurisdictional barriers to adoption

Under current law, DHFS, a county department or a child welfare agency may place a child for adoption in a licensed foster home without a court order if DHFS, the county department or the child welfare agency is the guardian of the child or makes the placement at the request of another agency that is the guardian of the child. Current law requires DHFS, a county department or a child welfare agency, before placing a child for adoption, to consider the availability of a placement for adoption with a relative of the child. This bill prohibits DHFS, a county department or a child welfare agency from denying or delaying the placement of a child for adoption when a family that has been approved as an adoptive placement for the child is available outside the county where the child is located.

Substitute care parent record confidentiality

Under current law, subject to certain exceptions, DHFS, the department of corrections (DOC), a county department or a child welfare agency may not make available for inspection or disclose the contents of any record kept or information received about an individual in the care or legal custody of DHFS, DOC, the county department or the child welfare agency except by order of the court assigned to exercise jurisdiction under the children's code and the juvenile justice code (juvenile court). Current law, however, is silent as to the confidentiality of records kept and information received relating to a foster parent, treatment foster parent or family-operated group home parent (substitute care parent). This bill prohibits DHFS, DOC, a county department or a child welfare agency from making available for inspection or disclosing the contents of any record kept or information received relating to a substitute care parent or a family member of a substitute care parent without first receiving the written permission of the substitute care parent, except by order of the juvenile court. The bill, however, does not apply to the confidential exchange of information between DHFS, DOC, a county department or a child welfare agency and another social welfare agency, a law enforcement agency, a public school, a private school, the victim-witness coordinator or a fire investigator regarding an individual in the care or legal custody of DHFS, DOC, the county department or the child welfare agency. The bill also does not prohibit DHFS, DOC, a county department or a child welfare agency from making available for inspection or disclosing the contents of a record as permitted under the child abuse and neglect reporting law, from disclosing to the child's parent, guardian or legal custodian the name and address of the substitute care parent or from including the location of the child's placement in the child's permanency plan.

Tribal adolescent services program and brighter futures initiative

Under current law, DHFS may provide a grant in the amount of $30,000 annually to an American Indian tribe or band for the provision of information to the members of the tribe or band in order to increase community knowledge about the problems of adolescents and the provision of information to, and activities for, adolescents, particularly female adolescents, in order to enable the adolescents to develop skills relating to reducing adolescent pregnancy and high school dropout rates; increasing economic self-sufficiency and expanding career options; enhancing self-esteem, interpersonal skills and responsible decision-making; and neutralizing sex-role stereotyping and bias (tribal adolescent services). Also under current law, DHFS is required to distribute $1,229,300 in each fiscal year to applying county departments operating in counties other than Milwaukee County to provide programs to prevent and reduce the incidence of youth violence and other delinquent behaviors, prevent and reduce the incidence of youth alcohol and other drug abuse, prevent and reduce the incidence of child abuse and neglect and increase adolescent self-sufficiency by encouraging high school graduation, vocational preparedness, improved social and other interpersonal skills and responsible decision-making (brighter futures initiative). This bill reduces the amount that DHFS is required to distribute in each fiscal year to county departments operating in counties other than Milwaukee County under the brighter futures initiative by $30,000 and increases the amount that DHFS may distribute for tribal adolescent services by $30,000.

Public health

Reporting an individual's positive HIV test

Under current law, a health care provider, blood bank, blood center or plasma center that obtains a positive result from a test given to an individual for the presence of the immunodeficiency virus (HIV) is required to report the positive test results to the state epidemiologist. The report made to the state epidemiologist must include the name, address, telephone number, age or date of birth, race or ethnicity, sex and county of residence of the test subject, if known, the date of the test and the test results. The report may not, however, contain any information with respect to the sexual orientation of the test subject or the identity of individuals with whom the test subject may have had sexual contact.

This bill eliminates the prohibition against reporting the sexual orientation of an individual who tests positive for HIV to the state epidemiologist and requires the report to include information regarding an individual's sexual orientation.

Funding for relief block grants to tribes

Under 1999 Wisconsin Act 9 (the biennial budget act), the tribal medical relief block grant program and the cooperative American Indian health projects grant program are funded with moneys received pursuant to Indian gaming compacts. This bill makes various technical changes to the funding provisions.

Long-term care

Family care eligibility and referral

The biennial budget act created numerous provisions related to establishment of family care, a program of financial assistance in providing long-term care and support items. Under the program, persons are entitled to and may receive the family care benefit if they are at least 18 years of age, have a physical disability or infirmities of aging, meet financial criteria, and fulfill any applicable cost-sharing requirements. They must also meet any of several functionality criteria and criteria related to eligibility for medical assistance, being in need of protective services or protective placement or having chronic or terminal conditions. Other persons may be eligible for, but are not necessarily entitled to, the family care benefit if they are at least 18 years of age, have a physical disability or infirmities of aging, meet financial criteria, fulfill any applicable cost-sharing requirements and meet any of several criteria relating to functionality. Persons with developmental disability in an initial family care county are both eligible and entitled. One of the criteria for functionality for both entitled and eligible persons is that the person must have a condition that is expected to last at least 90 days or result in death within 12 months after the date of application and, on the date that the family care benefit became available in the person's county of residence, the person was a nursing home resident or had been receiving care under long-term medical assistance, the Alzheimer's family caregiver support program, community aids, or county funding. This bill changes that criterion to apply it to persons who do not meet other functionality criteria and requires that persons seeking a determination of functional eligibility under the criterion first apply for eligibility for the family care benefit within 36 months after the date on which the family care benefit is initially available in the person's county of residence. Further, for persons who are entitled to the family care benefit, the bill creates a criterion that is similar but under which a person qualifies only if he or she does meet another specific functionality criterion. The bill clarifies that a person who is 18 years of age, has a primary disabling condition of developmental disability and meets financial and functionality criteria is both eligible for and entitled to the family care benefit, if the person is a resident of an initial family care county.

Under the family care provisions, if the secretary of health and family services has certified that a resource center is available, adult family homes, residential care apartment complexes, community-based residential facilities (C-BRFs), hospitals and nursing homes must, unless certain exceptions apply, refer persons who are aged at least 65 or have a physical disability that is expected to last at least 90 days to the resource center for services and determinations of eligibility for the family care benefit and for other programs. In addition, nursing homes and hospitals must so refer persons with developmental disability. This bill clarifies that referral by adult family homes, residential care apartment complexes and C-BRFs must also be made for persons with developmental disability.

Use of community options program waiver and community integration program funds in a community-based residential facility

Under current law, COP provides assessments of functionality and home and community-based care to, among others, elderly and disabled persons as an alternative to institutionalized care; one part of COP (commonly referred to as "COP-Regular") is funded by state moneys and the other part (commonly referred to as "COP-Waiver") is funded under a joint federal-state program under a waiver of federal medicaid laws. A community integration program (commonly referred to as CIP II) provides home and community-based services and continuity of care for persons who meet medical assistance eligibility requirements and are relocated from certain institutions or meet requirements for medical assistance reimbursement in nursing homes. Use of COP-Regular funds to provide services in C-BRFs is restricted to eight-bed facilities, unless DHFS approves service provision in a C-BRF licensed on July 29, 1995, that meets certain standards, in a C-BRF that entirely consists of independent apartments or in a C-BRF licensed after July 29, 1995, that is licensed for 20 or fewer beds and that meets certain standards. Use of COP-Waiver and CIP II funds to provide services in C-BRFs is restricted to four-bed facilities, unless DHFS approves service provision in a C-BRF of up to eight beds or that entirely consists of independent apartments. This bill changes the standard for use of COP-Waiver and CIP II funds to provide services in a C-BRF to the standard that exists in current law for use of COP-Regular funds to provide services in a C-BRF.

Public assistance

Medical assistance alcohol and other drug abuse services; size of facility

The biennial budget act creates a medical assistance benefit related to alcohol and other drug abuse residential treatment services in facilities with fewer than 16 beds that is available if a county, city, town or village agrees to pay the state share of the benefit. Current federal law, however, prohibits medical assistance payment for alcohol and other drug abuse treatment in facilities with more than 16 beds and thus permits the benefit in facilities with only 16 beds. This bill changes to 16 beds the size of a residential facility in which a medical assistance recipient may obtain alcohol and drug abuse treatment services if a county , city, village or town agrees to pay the state share of that medical assistance benefit.

Other health and mental health

Use of seclusion or restraints in state-operated mental health institutes

Under current law, the Mendota Mental Health Institute and the Winnebago Mental Health Institute provide mental health treatment services to persons with mental illness or drug dependency. Current federal regulations permit the use of seclusion or restraint of patients in psychiatric hospitals that participate in the medicare program only when less restrictive measures have been found to be ineffective to protect the patient or others from harm. This bill increases general purpose revenues to provide increased services and care in the state-operated mental health institutes that will permit alternatives to the use of restraint and seclusion for patients, in order to comply with standards specified in federal regulations.

Collection of health care information

Under the biennial budget act, health care providers that are not hospitals and ambulatory surgery centers are required to submit certain data to DHFS for partial release as reports and prohibited from submitting certain other data, including the patient's account number. However, under the biennial budget act, DHFS is also required to receive a patient account number and, after verification of the information, to remove and destroy the patient's account number. This bill clarifies that DHFS may receive a patient's account number, but must destroy the number after information verification.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB895, s. 1 Section 1. 20.435 (4) (bs) of the statutes, as affected by 1999 Wisconsin Act 9, section 421, is renumbered 20.435 (4) (kb) and amended to read:

AB895,9,6 20.435 (4) (kb) Relief block grants to tribal governing bodies. The amounts in the schedule for relief block grants under s. 49.029 to tribal governing bodies. All moneys transferred from the appropriation account under s. 20.505 (8) (hm) 18. shall be credited to this appropriation account.

AB895, s. 2 Section 2. 46.27 (11) (c) 5m. (intro.) of the statutes is amended to read:

AB895,9,11 46.27 (11) (c) 5m. (intro.) No county may use funds received under this subsection to provide services to a person who does not live in his or her own home or apartment unless, subject to the limitations under subds. 6., 6g., 7. and 8., one of the following applies:

AB895, s. 3 Section 3. 46.27 (11) (c) 5n. (intro.) of the statutes is amended to read:

AB895,9,14 46.27 (11) (c) 5n. (intro.) A county may also use funds received under this subsection, subject to the limitations under subds. 6., 6g., 7. and 8., to provide services to a person who does not live in his or her own home or apartment if the services are provided to the person in a community-based residential facility and the county department or aging unit has determined that all of the following conditions have been met:

AB895, s. 4 Section 4. 46.27 (11) (c) 6. (intro.) of the statutes is amended to read:

AB895,10,9 46.27 (11) (c) 6. (intro.) No county, private nonprofit agency or aging unit may use funds received under this subsection to provide residential services in any community-based residential facility, as defined in s. 50.01 (1g), or group home, as defined in s. 48.02 (7), that has more than 4 beds, unless one of the following applies:

AB895, s. 5 Section 5. 46.27 (11) (c) 6. a. of the statutes is repealed and recreated to read:

AB895,10,11 46.27 (11) (c) 6. a. The requirements of sub. (7) (cm) 1. a. or c. are met.

AB895, s. 6 Section 6. 46.27 (11) (c) 6g. of the statutes is created to read:

AB895,10,16 46.27 (11) (c) 6g. No county, private nonprofit agency or aging unit may use funds received under this subsection to provide residential services in a group home, as defined in s. 48.02 (7), that has more than 5 beds, unless the department approves the provision of services in a group home that has 6 to 8 beds.

AB895, s. 7 Section 7. 46.277 (5) (d) 1m. (intro.) of the statutes is amended to read:

AB895,10,21 46.277 (5) (d) 1m. (intro.) No county may use funds received under this section to provide services to a person who does not live in his or her own home or apartment unless, subject to the limitations under subds. 2. and , 3. and 4. and par. (e), one of the following applies:

AB895, s. 8 Section 8. 46.277 (5) (d) 1n. (intro.) of the statutes is amended to read:

AB895,11,3 46.277 (5) (d) 1n. (intro.) A county may also use funds received under this section, subject to the limitations under subds. 2. and , 3. and 4. and par. (e), to provide services to a person who does not live in his or her own home or apartment if the services are provided to the person in a community-based residential facility and the county department or aging unit has determined that all of the following conditions have been met:

AB895, s. 9 Section 9. 46.277 (5) (d) 2. (intro.) of the statutes is amended to read:

AB895,11,8 46.277 (5) (d) 2. (intro.) No county may use funds received under this section to provide residential services in any community-based residential facility, as defined in s. 50.01 (1g), or group home, as defined in s. 48.02 (7), that has more than 4 beds, unless one of the following applies:

AB895, s. 10 Section 10. 46.277 (5) (d) 2. a. of the statutes is repealed and recreated to read:

AB895,11,10 46.277 (5) (d) 2. a. The requirements of s. 46.27 (7) (cm) 1. a. or c. are met.

AB895, s. 11 Section 11. 46.277 (5) (d) 4. of the statutes is created to read:

AB895,11,15 46.277 (5) (d) 4. No county may use funds received under this section to provide residential services in a group home, as defined in s. 48.02 (7), that has more than 5 beds, unless the department approves the provision of services in a group home that has 6 to 8 beds.

AB895, s. 12 Section 12. 46.286 (1) (a) 2. (intro.) of the statutes, as created by 1999 Wisconsin Act 9, is amended to read:

AB895,12,2 46.286 (1) (a) 2. (intro.) The person has a condition that is expected to last at least 90 days or result in death within 12 months after the date of application but that does not meet the level specified under subd. 1. a. or b.; the person first applies for eligibility for the family care benefit within 36 months after the date on which the family care benefit is initially available in the person's county of residence; and, on the date that the family care benefit became available in the person's county of residence, the person was a resident in a nursing home or had been receiving for at least 60 days, under a written plan of care, long-term care services, as specified by the department, which were funded under any of the following:

AB895, s. 13 Section 13. 46.286 (1m) of the statutes, as created by 1999 Wisconsin Act 9, is amended to read:

AB895,12,10 46.286 (1m) Eligibility exception. A person whose primary disabling condition is developmental disability is eligible for the family care benefit if the person is a resident of a county or is a member of a tribe or band that has operated, before July 1, 2001, a care management organization under s. 46.281 (1) (d), is at least 18 years of age and meets all other eligibility criteria under this subsection sub. (1) (a) and (b).

AB895, s. 14 Section 14. 46.286 (3) (a) (intro.) of the statutes, as created by 1999 Wisconsin Act 9, is amended to read:

AB895,12,17 46.286 (3) (a) (intro.) Subject to pars. (c) and (d), a person is entitled to and may receive the family care benefit through enrollment in a care management organization if he or she meets the requirements of sub. (1) (intro.), except as provided in subd. 5., is financially eligible, fulfills any applicable cost-sharing requirements and meets any of the following criteria:

AB895, s. 15 Section 15. 46.286 (3) (a) 6. of the statutes is created to read:

AB895,12,20 46.286 (3) (a) 6. Is functionally eligible at the intermediate level and meets all of the following criteria:

AB895,12,25 a. On the date on which the family care benefit is initially available in the person's county of residence, is a resident in a nursing home or has been receiving for at least 60 days, under a written plan of care, long-term care services, as specified by the department, which are funded as specified under sub. (1) (a) 2. a., b., c., d. or e.

AB895,13,2 b. Enrolls within 36 months after the date on which the family care benefit is initially available in the person's county of residence.

AB895, s. 16 Section 16. 46.289 of the statutes, as created by 1999 Wisconsin Act 9, is amended to read:

AB895,13,12 46.289 Transition. In order to facilitate the transition to the long-term care system specified in ss. 46.2805 to 46.2895, within the limits of applicable federal statutes and regulations and if the secretary of health and family services finds it necessary, he or she may grant a county limited waivers to or exemptions from ss. 46.27 (3) (e) (intro.), 1. and 2. and (f), (5) (d) and (e), (6) (a) 1., 2. and 3. and (b) (intro.), 1. and 2., (6r) (c), (7) (b), (cj) and (cm) and (11) (c) 5m. (intro.) and, 6. and 6g. and 46.277 (3) (a), (4) (a) and (5) (d) 1m., 1n. and, 2. and 4. and rules promulgated under those provisions.

AB895, s. 17 Section 17. 46.99 (2) (a) (intro.) of the statutes, as created by 1999 Wisconsin Act 9, is amended to read:

AB895,13,21 46.99 (2) (a) (intro.) From the appropriations under s. 20.435 (3) (eg), (km) and (nL), the department, beginning on January 1, 2001, shall distribute $2,125,200 in each fiscal year to applying nonprofit corporations and public agencies operating in a county having a population of 500,000 or more and $1,229,300 $1,199,300 in each fiscal year to applying county departments under s. 46.22, 46.23, 51.42 or 51.437 operating in counties other than a county having a population of 500,000 or more to provide programs to accomplish all of the following:

AB895, s. 18 Section 18. 46.995 (1m) of the statutes, as created by 1999 Wisconsin Act 9, is amended to read:

AB895,14,3 46.995 (1m) Tribal adolescent services allocations. From the appropriation account under s. 20.435 (3) (km), the department may allocate $172,500 $195,000 in each fiscal year and, from the appropriation account under s. 20.435 (3) (eg), the department may allocate $7,500 $15,000 in each fiscal year to provide the grants specified in subs. (2), (3) (b) and (4m) (b).

AB895, s. 19 Section 19. 46.995 (4m) (b) (intro.) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

AB895,14,12 46.995 (4m) (b) (intro.) From the allocations under sub. (1m), the department may provide a grant annually in the amount of $30,000 $60,000 to the elected governing body of a federally recognized American Indian tribe or band for the provision of information to members of the tribe or band in order to increase community knowledge about problems of adolescents and information to and activities for adolescents, particularly female adolescents, in order to enable the adolescents to develop skills with respect to all of the following:

AB895, s. 20 Section 20. 48.78 (3) of the statutes is created to read:

AB895,14,20 48.78 (3) (a) Except as provided in pars. (b) to (d) or by order of the court, no agency may make available for inspection or disclose the contents of any record kept or information received relating to a foster parent, treatment foster parent or family-operated group home, as defined in s. 48.627 (1), parent or a family member of a foster parent, treatment foster parent or family-operated group home parent without first receiving the written permission of the foster parent, treatment foster parent or family-operated group home parent.

AB895,15,6 (bm) Paragraph (a) does not apply to the confidential exchange of information between an agency and another social welfare agency, a law enforcement agency, a public school or a private school regarding an individual in the care or legal custody of the agency. A social welfare agency that obtains information under this paragraph shall keep the information confidential as required under this section and s. 938.78. A law enforcement agency that obtains information under this paragraph shall keep the information confidential as required under ss. 48.396 (1) and 938.396 (1). A public school that obtains information under this paragraph shall keep the information confidential as required under s. 118.125 and a private school that obtains information under this paragraph shall keep the information confidential in the same manner as is required of a public school under s. 118.125.

AB895,15,8 (c) Paragraph (a) does not prohibit an agency from making available for inspection or disclosing the contents of a record under s. 48.981 (7).

AB895,15,12 (d) Paragraph (a) does not prohibit an agency from disclosing the name and address of a foster parent, treatment foster parent or family-operated group home parent under s. 48.20 (8), 48.227 (2), 48.33 (5), 48.355 (2) (b) 2., 48.357 (1) or (2m) or 48.38 (4) (c).

AB895, s. 21 Section 21. 48.833 of the statutes is amended to read:

AB895,16,8 48.833 Placement of children for adoption by the department, county departments and child welfare agencies. The department, a county department under s. 48.57 (1) (e) or (hm) or a child welfare agency licensed under s. 48.60 may place a child for adoption in a licensed foster home or a licensed treatment foster home without a court order if the department, county department under s. 48.57 (1) (e) or (hm) or the child welfare agency is the guardian of the child or makes the placement at the request of another agency which is the guardian of the child. Before placing a child for adoption under this section, the department, county department or child welfare agency making the placement shall consider the availability of a placement for adoption with a relative of the child who is identified in the child's permanency plan under s. 48.38 or 938.38 or who is otherwise known by the department, county department or child welfare agency. The department, county department or child welfare agency may not deny or delay the placement of a child for adoption when a family that has been approved as an adoptive placement for the child is available outside of the county where the child is located. When a child is placed under this section in a licensed foster home or a licensed treatment foster home for adoption, the department, county department or child welfare agency making the placement shall enter into a written agreement with the adoptive parent, which shall state the date on which the child is placed in the licensed foster home or licensed treatment foster home for adoption by the adoptive parent.

AB895, s. 22 Section 22. 48.981 (3) (c) 5m. of the statutes is created to read:

AB895,16,24 48.981 (3) (c) 5m. If the county department or, in a county having a population of 500,000 or more, the department or a licensed child welfare agency under contract with the department determines under subd. 4. that a specific person has abused or neglected a child, the county department, department or licensed child welfare agency, within 15 days after the date of the determination, shall notify the person in writing of the determination, the person's right to appeal the determination and the procedure by which the person may appeal the determination, and the person may appeal the determination in accordance with the procedures established by the department under this subdivision. The department shall establish procedures for conducting an appeal under this subdivision. Those procedures shall include a procedure permitting an appeal under this subdivision to be held in abeyance pending the outcome of any criminal proceedings or any proceedings under s. 48.13 based on the alleged abuse or neglect or the outcome of any investigation that may lead to the filing of a criminal complaint or a petition under s. 48.13 based on the alleged abuse or neglect. Those procedures need not be promulgated as rules.

AB895, s. 23 Section 23. 48.981 (3) (cm) of the statutes is amended to read: